Citation Nr: 9925684
Decision Date: 09/09/99 Archive Date: 09/21/99
DOCKET NO. 92-12 514 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Huntington,
West Virginia
THE ISSUES
1. Entitlement to service connection for plantar wart of the
right foot.
2. Entitlement to service connection for residuals of
pneumonia.
3. Whether new and material evidence has been submitted to
reopen a claim of entitlement to service connection for
hepatitis.
4. Whether new and material evidence has been submitted to
reopen a claim of entitlement to service connection for
lumbosacral strain.
5. Entitlement to a disability rating in excess of 10
percent for plantar wart of the left foot.
6. Entitlement to a disability rating in excess of 10
percent for residuals of injury of the left shoulder.
REPRESENTATION
Appellant represented by: Paralyzed Veterans of America,
Inc.
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
John Kitlas, Associate Counsel
INTRODUCTION
The veteran served on active duty from July 1970 to July
1973.
Service connection was denied for hepatitis and lumbosacral
strain, among other things, by a May 1974 rating decision.
The veteran was informed of this decision, and did not
appeal.
The May 1974 rating decision also granted service connection
for plantar wart of the left foot, then identified as verruca
plantaris. A noncompensable (zero percent) disability rating
was assigned, effective July 27, 1973. This rating was
subsequently increased to 10 percent, effective August 8,
1979, by an October 1979 rating decision.
Service connection was granted for the left shoulder disorder
by a June 1974 rating decision. A 10 percent disability
rating was assigned, effective July 27, 1973. This rating
was increased to 20 percent, effective May 28, 1974, by a
February 1975 rating decision. A September 1976 rating
decision reduced the rating back to 10 percent, effective
December 1, 1976.
This matter is before the Board of Veterans' Appeals (Board)
on appeal from an August 1990 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Huntington, West Virginia.
The veteran provided testimony at a personal hearing before
the RO in October 1991, a transcript of which is of record.
This matter was previously before the Board in May 1993 and
June 1997, when it was remanded for additional development.
It has now been returned to the Board for further appellate
consideration. As a preliminary matter, the Board finds that
the RO has substantially complied with the directives of both
remands. Medical records were obtained or requested in
accord with the remand instructions, the veteran was accorded
a VA examination, and an opinion was obtained regarding the
etiology of the veteran's hepatitis C. Accordingly, a new
remand is not required to comply with the holding of Stegall
v. West, 11 Vet. App. 268 (1998).
FINDINGS OF FACT
1. The service medical records show that the veteran was
treated for back problems, viral hepatitis, and plantar wart
of the left toe during his period of active duty. However,
while the records show treatment for congestion and note a
past episode of pneumonia, there was no actual diagnosis of
or treatment for pneumonia during the veteran's period of
active duty.
2. The veteran has testified that he had plantar warts on
the right foot during service, but not as severe as the
plantar warts on the left foot.
3. It is not clear from the medical evidence on file whether
the veteran's right plantar wart is related to his period of
active service and/or his service-connected left plantar
wart.
4. No competent medical evidence is on file which shows a
current diagnosis of pneumonia, or residuals thereof.
5. The May 1974 rating decision denied the veteran's claims
of entitlement to service connection for hepatitis and
lumbosacral strain because there was no current medical
diagnosis of either condition, or residuals thereof.
6. The evidence submitted to reopen the veteran's claim of
hepatitis includes medical records showing that the veteran
currently has hepatitis C, and that he has had hepatitis B in
the past, not currently active.
7. The veteran has stated that he had hepatitis B during
service.
8. The medical evidence on file shows that there is no
relationship between the reported in-service hepatitis B and
the current hepatitis C.
9. The evidence submitted to reopen the veteran's claim of
service connection for lumbosacral strain includes medical
records showing treatment for back pain.
10. No competent medical evidence is on file which relates
the veteran's in-service back problems to his current back
disorder.
11. The medical evidence and the veteran's own statements
show that his left plantar wart is currently manifest by a
residual tender and painful callus which must be shaved
periodically.
12. The evidence does not show that the left plantar wart is
currently manifest by exudation or constant itching,
extensive lesions or marked disfigurement, or limitation of
motion of the left foot.
CONCLUSIONS OF LAW
1. The May 1974 decision denying the veteran's claims of
entitlement to service connection for hepatitis and
lumbosacral strain is final. 38 U.S.C. 4005(c) (1970)
(38 U.S.C.A. § 7105 (West 1991)); 38 C.F.R. § 19.192 (1983)
(38 C.F.R. § 20.1103 (1998)).
2. New and material evidence has been presented to reopen
the veteran's claim of entitlement to service connection for
hepatitis; the claim is reopened. 38 U.S.C.A. § 5108
(West 1991); 38 C.F.R. § 3.156(a) (1998).
3. The claim of entitlement to service connection for
hepatitis is not well-grounded. 38 U.S.C.A. § 5107(a).
4. New and material evidence has been presented to reopen
the veteran's claim of entitlement to service connection for
lumbosacral strain; the claim is reopened. 38 U.S.C.A.
§ 5108 (West 1991); 38 C.F.R. § 3.156(a) (1998).
5. The claim of entitlement to service connection for
lumbosacral strain is not well-grounded. 38 U.S.C.A. §
5107(a).
6. The claim of entitlement to service connection for a
right plantar wart is well-grounded. 38 U.S.C.A. § 5107(a);
Savage v. Gober, 10 Vet. App. 288 (1997).
7. The claim of entitlement to service connection for
pneumonia is not well-grounded. 38 U.S.C.A. § 5107(a).
8. The criteria for a disability rating in excess of 10
percent for left plantar wart have not been met. 38 U.S.C.A.
§§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.118, Diagnostic
Codes 7803 to 7806, 7819.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Service Connection
Legal Criteria. Service connection may be established for a
disability resulting from disease or injury incurred in or
aggravated by service. 38 U.S.C.A. § 1131 (West 1991);
38 C.F.R. § 3.303 (1998). Evidence of continuity of
symptomatology from the time of service until the present is
required where the chronicity of a condition manifested
during service either has not been established or might
reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations
also provide that service connection may be granted for any
disease diagnosed after discharge, when all the evidence,
including that pertinent to service, establishes that the
disability was incurred in service. 38 C.F.R. § 3.303(d)
(1998).
The threshold question that must be resolved is whether the
veteran has presented evidence of a well-grounded claim. A
well-grounded claim is a plausible claim that is meritorious
on its own or capable of substantiation. An allegation that
a disorder is service connected is not sufficient; the
veteran must submit evidence in support of a claim that would
"justify a belief by a fair and impartial individual that
the claim is plausible." See 38 U.S.C.A. § 5107(a) (West
1991); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992);
Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). The quality
and quantity of the evidence required to meet this statutory
burden of necessity will depend upon the issue presented by
the claim. Grottveit, 5 Vet. App at 92-93.
In order for a claim to be well-grounded, there must be
competent evidence of a current disability (a medical
diagnosis); evidence of incurrence or aggravation of
a disease or injury in service (lay or medical evidence); and
evidence of a nexus between the in-service injury or disease
and the current disability (medical evidence). Caluza v.
Brown, 7 Vet. App. 498, 506 (1995).
In addition to the general standard set forth in Caluza v.
Brown, chronicity and continuity standards can also
establish a well-grounded claim. Savage v. Gober, 10 Vet.
App. 488 (1997). The chronicity standard is established by
competent evidence of the existence of a chronic disease in
service or during an applicable presumption period; and
present manifestations of the same chronic disease. The
continuity standard is established by medical evidence of a
current disability; evidence that a condition was noted in
service or during a presumption period; evidence of post-
service continuity of symptomatology; and medical, or in
some circumstances, lay evidence of a nexus between the
present disability and the post-service symptomatology.
This type of lay evidence, for purposes of well
groundedness, will be presumed credible when it involves
visible symptomatology that is not inherently incredible or
beyond the competence of a lay person to observe. Savage,
supra.
Where the determinant issue involves a question of medical
diagnosis or medical causation, competent medical evidence is
necessary to establish a well-grounded claim. Lay assertions
of medical causation or a medical diagnosis cannot constitute
evidence to render a claim well-grounded. Grottveit, 5 Vet.
App. at 93.
A. Right Plantar Wart
Background. The veteran's feet were clinically evaluated as
normal on his July 1970 enlistment examination. At the same
time, the veteran reported that he had never experienced foot
trouble, nor a tumor, growth, cyst, or cancer. His service
medical records show that he was treated on several occasions
for ingrown toenails. Records from October 1972 reflect
suturing of the right toe. He was also treated that month
for a rash/itching sores on the dorsal aspects of both feet.
In March 1973, he was treated for plantar verruca of the left
great toe, and subsequently placed on temporary restricted
duty. No discharge examination is on file, but on his Report
of Medical History the veteran reported that he had
experienced foot trouble, and a tumor, growth, cyst, or
cancer.
VA medical records are on file from March to April 1974,
which show treatment for plantar warts. Although the left
great toe was noted, there is no specific finding of plantar
warts on the right foot.
At the April 1974 VA examination, the veteran reported that
his feet were in constant pain, and that he could not stand.
No plantar warts were noted by the examiner.
Service connection was granted for verruca plantaris and acne
vulgaris by a May 1974 rating decision. At that time, it was
noted that the veteran had experienced plantar wart of the
left great toe in March 1973.
Subsequent VA medical records show treatment in July 1974 for
verruca vulgaris at the large left toe and base of the foot.
There was no specific finding of plantar warts regarding the
right foot.
On a September 1979 VA examination, it was noted that the
veteran had service connection for plantar wart of the left
foot, but that the veteran now had painful calluses on both
feet. Specifically, there were three painful calluses on the
left foot, and five on the right.
VA medical records are on file from March 1990 which show
treatment for chronic right foot pain with a history of
spurs. X-rays of the right foot from April 1990 revealed
that the bony outlines and architecture looked normal. The
impression was no bony radiopathology. Subsequent records
from July 1990 show treatment for plantar wart of the left
heel, but no plantar warts were noted on the right foot.
In the August 1990 rating decision, the RO denied service
connection for plantar wart of the right foot. The RO noted
that no plantar wart of the right foot was shown in the
service medical records, the April 1974 VA examination, and
the current medical records submitted in support of the
veteran's claim.
At a June 1991 VA examination, a small callous was noted over
the metatarsal phalangeal joint of the left great toe. No
specific findings were made regarding the right foot.
At his October 1991 personal hearing, the veteran testified
that he had plantar warts on both feet during service. He
testified that while they operated on his left foot because
it was more severe, he had warts removed from his right foot
with salicylic acid. Also, he testified that this procedure
was repeated over a six to eight week period. The veteran
testified that he has continuously received treatment on both
feet since his discharge, and that he currently had problems
with both feet.
VA medical records from September 1991 show treatment for
elongated nails of the feet.
Additional VA medical records were obtained in conjunction
with the veteran's claims that cover the period from February
1988 to August 1992. Among other things, these records show
treatment for intractable plantar keratosis (IPK) on both
feet.
At the March 1998 VA examination, the examiner noted that the
veteran's C-file was available for his review. Diagnoses
included plantar wart/removal, to the feet bilaterally. The
examiner further noted that the veteran had plantar warts of
the right foot, predisposed to infection on the left foot.
Additionally, the examiner noted that outpatient records from
March to April 1974 showed treatment for plantar warts.
Blunt dissection was used on the left great toe, and the
examiner reported that the records stated "that to other
foot verruca," they used salicylate acid plaster and
continued with other treatments which were difficult to read.
In a June 1998 Supplemental Statement of the Case, the RO
confirmed and continued the denial of service connection for
plantar wart of the right foot as not well-grounded. The RO
stated that there was no record of treatment in service for
plantar warts of the right foot. Therefore, the RO concluded
that the claimed condition was neither incurred in or
aggravated by military service.
In July 1998, the veteran's representative submitted a
statement from P. W. Mallory, D.P.M., in support of the
veteran's claim. Dr. Mallory reported that the veteran had
the following foot disabilities: IPK (possibly "intractable
plantar keratosis") below the fifth metatarsal, bilateral;
IPK left hallux; and tyloma below the first metatarsal of the
right foot.
In a January 1999 Supplemental Statement of the Case, the RO
confirmed and continued the denial of the veteran's claim as
not well-grounded. The RO noted that there was no competent
medical nexus evidence which related the veteran's plantar
warts on the right foot to his military service.
Analysis. In the instant case, the Board finds that the
veteran's claim of entitlement to service connection for a
right plantar wart is well-grounded. The medical evidence
shows that the veteran has plantar warts of the right foot.
Also, the veteran has testified, under oath, that he had
plantar warts of the right foot during service, but not as
severe as the plantar warts of the left foot. He has also
reported continuity of symptomatology for plantar warts of
both feet since his discharge from service. The veteran's
statements are presumed credible for the purpose of
determining whether his claim is well-grounded. Meyer v.
Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet.
App. 19, 21 (1993). Moreover, the Board finds that plantar
warts on the feet involves visible symptomatology and that
the veteran's testimony concerning such symptoms is not
inherently incredible or beyond the competence of a lay
person to observe. Accordingly, the veteran's claim is
well-grounded pursuant to Savage, supra.
As stated above, in determining that the veteran's claim is
well-grounded, the credibility of evidence has been presumed
and the probative value of the evidence has not been weighed.
However, once the claim is found to be well-grounded, the
presumption that it is credible and entitled to full weight
no longer applies. In the adjudication that follows, the
Board must determine, as a question of fact, both the weight
and credibility of the evidence. Equal weight is not
accorded to each piece of material contained in a record;
every item of evidence does not have the same probative
value.
The Board must account for the evidence which it finds to be
persuasive or unpersuasive, analyze the credibility and
probative value of all material evidence submitted by and on
behalf of a claimant, and provide the reasons for its
rejection of any such evidence. See Struck v. Brown, 9 Vet.
App. 145, 152 (1996); Caluza v. Brown, 7 Vet. App. 498, 506
(1995); Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994);
Abernathy v. Principi, 3 Vet. App. 461, 465 (1992); Simon v.
Derwinski, 2 Vet. App. 621, 622 (1992); Hatlestad v.
Derwinski, 1 Vet. App. 164, 169 (1991). The credibility of a
witness can be impeached by a showing of interest, bias,
inconsistent statements, or, to a certain extent, bad
character. An expressed recognition of the difficulties of
remembering specific dates or events that happened long ago
would also be pertinent. Although credibility is often
determined by the demeanor of a witness, a document may also
be credible evidence. The Court in Savage noted that in a
merits context the lack of evidence of treatment may bear on
the credibility of the evidence of continuity. Savage at
496.
In the instant case, the Board notes that despite the
veteran's contentions that he had plantar warts on both feet
during service, the evidence on file does not show a
specific, medical finding of plantar warts on the right foot
until the September 1979 VA examination. This is
approximately six years after service. Therefore, the Board
is of the opinion that further development is necessary to
determine whether the veteran is entitled to a grant of
service connection for his right plantar wart. Additionally,
the Board finds it is unclear whether or not the March 1998
VA examiner was indicating that the plantar wart of the right
foot was related to the plantar wart of the left foot.
Specifically, the Board finds that the examiner's finding
that the veteran had "plantar warts of the right foot,
predisposed to infection on the left foot," is unclear and
open to interpretation. Therefore, clarification is
necessary.
For the reasons stated above, the Board concludes that a
REMAND is necessary for a full and fair adjudication of the
veteran's claim of entitlement to service connection for
plantar wart of the right foot. Therefore, this issue will
be further addressed in the remand portion of this opinion.
B. Pneumonia
Background. The veteran's lungs and chest were clinically
evaluated as normal on his July 1970 enlistment examination.
Chest X-ray was noted to be normal. At the same time, the
veteran reported that he had never experienced chronic or
frequent colds.
The service medical records show that in September 1970 the
veteran was treated for chills, dizziness, sore throat, and
throbbing headache. The diagnostic impression was upper
respiratory infection. In October 1970, the veteran
requested a throat culture and a mono test. At that time, it
was stated that he had pneumonia approximately one month
earlier. In April 1971, the veteran was hospitalized for
fever, malaise, and sore throat. Final diagnosis was
mononucleosis, infectious. The veteran complained of
bronchitis in June 1972. X-rays taken of the chest at that
time showed that the heart and aorta were normal. The
pleural spaces and left lung were clear. There were
relatively well-defined, somewhat linear areas of increased
density in the right upper lobe. There were no alveolar
infiltrates noted. Overall impression was that the right
upper lobe findings were most likely the fibrotic residual of
previous inflammatory disease. A density was noted in the
right apex just lateral to the mediastinum on apical lordotic
view X-ray . This appeared to represent a zygos lobe. There
was no evidence of tuberculosis or active pulmonary disease.
The lungs were clear. The veteran was treated for chest
pains in November 1972. Chest X-rays from November 1972
showed no active disease. No discharge examination is on
file, but on his Report of Medical History the veteran
reported that he had experienced chronic or frequent colds.
In June 1990 the veteran made a claim of entitlement to
service connection for, among other things, "bronchial
pneumonia."
VA medical records were obtained that covered the period from
March to July 1990. These records show no treatment for
pneumonia.
In the August 1990 rating decision, the RO denied service
connection for bronchial pneumonia because there was no
diagnosis of or treatment for the condition in the service
medical records.
At his October 1991 personal hearing, the veteran testified
that he was hospitalized for bronchial pneumonia during his
seventh week of basic training. He testified that this
hospitalization lasted for five days. Also, he testified
that X-rays of his chest during service showed a spot on his
right lung, and that it had continued to show up on
subsequent X-rays. He testified that he was not actually
treated for pneumonia during service, but for bronchitis
which the doctors reportedly told him was chronic. The
veteran stated that he continued to have lung problems since
his discharge from service. He described his current
problems as a lot of respiratory congestion, with mucous and
difficulty breathing. On inquiry, the veteran acknowledged
that he smoked about a pack of cigarettes a day.
Additional VA medical records were obtained that covered the
period from February 1988 to August 1992. These records show
no specific diagnosis of or treatment for pneumonia.
At the March 1998 VA examination, the examiner noted that the
veteran had no hemoptysis. The veteran reported that during
his fourth week of basic training he developed pneumonia, and
was subsequently hospitalized for four to five days. After
he finished basic training, he reportedly had walking
pneumonia two to three times in the service and afterwards.
It was noted that the veteran had had no hospitalizations for
pulmonary illness again. However, he had frequent colds,
upper respiratory and lower respiratory, usually gone in five
days, not usually requiring antibiotics. It was also noted
that the veteran currently took vitamins. On examination,
the veteran's chest was found to be clear to auscultation
bilaterally. It was noted that chest X-ray showed left
ventricular enlargement without evidence of failure.
Diagnoses included history of pneumonia, currently stable.
An addendum noted that the veteran's pulmonary function tests
showed normal spirometry and normal lung volumes.
In a January 1999 Supplemental Statement of the Case, the RO
confirmed and continued the denial of service connection for
pneumonia as not well-grounded. The RO found that the
medical evidence on file did not show a chronic diagnosis of
pneumonia or that such was related to the veteran's period of
military service.
In a May 1999 statement, the veteran's representative noted
that the veteran's service medical records showed that in
October 1970 he reported a history pneumonia one month
earlier. The representative also contended that the findings
of the June 1992 chest X-rays were evidence of residual
pneumonia, which the representative emphasized was more than
a year and a half after the reported episode of pneumonia.
Furthermore, the representative asserted that the veteran's
post-service history of frequent colds, as well as upper and
lower respiratory problems, were also residuals of the
veteran's pneumonia.
Analysis. In the instant case, the Board finds that the
veteran has not submitted a well-grounded claim of
entitlement to service connection for pneumonia. There is no
competent medical evidence on file which shows a current
diagnosis of pneumonia or residuals thereof. The Court has
held that "Congress specifically limits entitlement for
service-connected disease or injury to cases where such
incidents have resulted in a disability. In the absence of
proof of a present disability there can be no valid claim."
Brammer v. Derwinski, 3 Vet.App. 223, 225 (1992); see also
Rabideau v. Derwinski, 2 Vet.App. 141, 143-44 (1992). The
only such evidence are the contentions of the veteran and his
representative. Nothing on file shows that either of them
has the requisite knowledge, skill, experience, training, or
education to render a medical opinion. See Espiritu v.
Derwinski, 2 Vet. App. 492, 494 (1992). Consequently, these
contentions cannot well ground the claim. Grottveit at 93;
Caluza at 504.
Even if the veteran did have a current medical diagnosis of
pneumonia, the Board notes that pneumonia is an internal
condition, not subject to lay observation. Accordingly,
competent medical nexus evidence would be necessary to well
ground the veteran's claim. Grottveit at 93; Caluza at 504;
see also Savage v. Gober, 10 Vet. App. 488 (1997) (where the
disability is of the type as to which lay observation is not
competent to identify its existence, medical evidence, and
not simply a showing of continuity of symptoms, is needed to
provide a nexus between the veteran's in-service symptoms and
the currently diagnosed disabilities). The only such
evidence consists of the contentions of the veteran and his
representative. As stated above, nothing on file shows that
the veteran or his representative is competent to render a
medical opinion. No such opinion is on file. Therefore, the
veteran's claim is not well-grounded and must be denied.
In Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), cert.
denied sub nom. Epps v. West, 118 S.Ct. 2348 (1998), the
Federal Circuit upheld the Court's interpretation of 38
U.S.C.A. § 5107(a) and held that VA has no duty to assist the
claimant in the absence of a well-grounded claim. However,
VA may, dependent on the facts of the case, have a duty to
notify the veteran of the evidence needed to support his
claim. 38 U.S.C.A. § 5103; see also Robinette v. Brown, 8
Vet. App. 69, 79 (1995). The Board finds that the RO has
advised the veteran of the evidence necessary to well ground
his claim, and the veteran has not indicated the existence of
any pertinent evidence that has not already been obtained or
requested that would well-ground his claim. McKnight v.
Brown, 131 F.3d 1483 (Fed.Cir. 1997); Epps, supra. Moreover,
since the veteran has not submitted the evidence necessary
for a well-grounded claim, a weighing of the merits of the
claim is not warranted, and the reasonable doubt doctrine is
not for application. See generally Gilbert v. Derwinski, 1
Vet. App. 49 (1990).
II. New and Material Evidence
Legal Criteria: New and Material Evidence. Despite the
finality of a prior decision, a claim will be reopened and
the former disposition reviewed if new and material evidence
is presented or secured with respect to the claim which has
been disallowed. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a).
The United States Court of Appeals for Veterans Claims (known
as the United States Court of Veterans Appeals prior to March
1, 1999) (hereinafter, "the Court") has held that, when
"new and material evidence" is presented or secured with
respect to a previously and finally disallowed claim, VA must
reopen the claim. Manio v. Derwinski, 1 Vet. App. 140, 145
(1991).
The provisions of 38 C.F.R. § 3.156(a), provide that "new
and material evidence" is evidence not previously submitted
which bears directly and substantially upon the specific
matter under consideration, is not cumulative or redundant,
and which by itself or in connection with evidence previously
assembled is so significant that it must be considered in
order to fairly decide the merits of the claim. Furthermore,
the Court of Appeals for the Federal Circuit has indicated
that evidence may be considered new and material if it
contributes "to a more complete picture of the circumstances
surrounding the origin of a veteran's injury or disability,
even where it will not eventually convince the Board to alter
its ratings decision." Hodge v. West, 115 F.3d 1356, 1363
(Fed. Cir. 1998).
With regard to petitions to reopen previously and finally
disallowed claims, the Board must conduct a three-part
analysis. Elkins v. West, 12 Vet. App. 209 (1999). First, VA
must determine whether the evidence presented or secured
since the prior final disallowance of the claim is "new and
material" under 38 C.F.R. § 3.156(a). Second, if new and
material evidence has been presented, immediately upon
reopening the VA must determine whether, based upon all the
evidence and presuming its credibility, the claim is well
grounded pursuant to 38 U.S.C.A. § 5107(a). Finally, if the
claim is well-grounded, the VA may evaluate the merits after
ensuring the duty to assist under 38 U.S.C.A. § 5107(b) has
been fulfilled.
A. Hepatitis
Background. The veteran's service medical records show that
he was hospitalized in April 1973, at which time he was
diagnosed with viral hepatitis, among other things. He was
subsequently placed on temporary limited duty as a result of
his hepatitis. No discharge examination is on file.
The veteran underwent a VA examination in April 1974. This
examination indicated that the veteran did not have any
current residuals of hepatitis.
In a May 1974 rating decision, the RO denied service
connection for hepatitis, among other things. The RO noted
the in-service treatment for viral hepatitis, and that no
residuals were found by VA examination. The veteran was
informed of this decision, and did not appeal.
The veteran sought to reopen his claim of service connection
for hepatitis in June 1990. In conjunction with this claim,
VA medical records were obtained which included an April 1990
hepatitis profile. The results of this profile showed that
the veteran was negative for the hepatitis B surface antigen,
but he was positive for the hepatitis B surface antibody.
These results reflect that the veteran had hepatitis B in the
past, but it was not currently active.
In an August 1990 rating decision, the RO denied the
veteran's claim for hepatitis, among other things. The RO
noted that the evidence on file did not show any diagnosis or
treatment for hepatitis. Consequently, the RO concluded that
the evidence received did not warrant any change in the prior
denial. The veteran appealed this decision to the Board.
VA medical records show that the veteran was evaluated in
April 1991 for possible "recurrent hepatitis B."
At his October 1991 personal hearing, the veteran testified
that he was diagnosed with hepatitis during service. He
described his symptoms at that time as feeling tired all of
the time, that he could hardly move, he was aching, and his
stools turned white. Further, he testified that the doctors
informed him that if his hepatitis ever recurred he would
have the same type of symptoms, and that it was a permanently
damaging disease. He testified that he experienced hepatitis
again in 1975 or 1976. However, he stated that he did not
seek medical attention at that time because he knew how to
take care of the condition from when he had it during
service. Additionally, he testified that he had another
episode of hepatitis in 1980 or 1981, when he was returning
from South Korea from a business trip. He testified that he
received private medical treatment for his hepatitis at that
time. Unfortunately, he did not have the medical records
from this period, and his request for the records had been
refused by the medical insurance firm. This insurance firm
was through his employer at the time. The veteran also
testified that the company he worked for was no longer in
existence.
In the May 1993 Remand, the Board noted that the veteran had
reported that he had post-service treatment for hepatitis in
1975 or 1976, but that no clinical evidence had been
submitted in support of this contention. The Board also
noted that the 1974 VA examination showed that liver function
studies were essentially within normal limits. Nevertheless,
the Board was of the opinion that the veteran should undergo
an examination by a specialist in liver diseases who could
state whether or not the veteran had chronic hepatitis, or
residuals of the hepatitis for which he was treated in
service.
A VA examination for alimentary appendages (digestive) was
accorded to the veteran in March 1996. The examiner noted
that the veteran's C-file had been reviewed. It was noted
that the veteran had a history of hepatitis since 1972, and
that he reported three post-service episodes of hepatitis.
One reportedly occurred in 1976, one in 1980, and one in
1985. The examiner further noted that the veteran had a
history of positive antibodies hepatitis B. Also, the
veteran had a history of starting a hepatitis B infection
after he said he was given shots entering the military. The
veteran reported no history of IV drug experience, and no
history of sexual, promiscuous-type behavior. Overall, the
examiner assessed a history of serum hepatitis type B. The
examiner noted that there was a question of reactivated
hepatitis in the veteran's life time being in 1976, 1980, and
1985. Therefore, the examiner recommended that hepatitis
markers be obtained for all - A, B, and C - in order to
determine if the veteran was a chronic, active carrier.
An October 1996 VA clinical laboratory report reflects that
the veteran was confirmed positive for the hepatitis C
antibody. This report also shows that the veteran was
negative for the hepatitis B surface antigen and the
hepatitis B core antigen, but positive for the hepatitis B
surface antibody. As stated above, these findings reflect
that the veteran had hepatitis B in the past, but it was not
currently active.
When the case was returned to the Board in June 1997, it was
noted that the record did not indicate whether the veteran's
positive hepatitis C antibody was related to the in-service
episode of viral hepatitis. Accordingly, the case was
remanded for the RO to refer the issue to a specialist in
liver disease for the purpose of obtaining a medical opinion
as to the significance of the 1996 finding that the veteran
was positive for the hepatitis C antibody and for an opinion
as to the relationship, if any, between this finding and the
in-service episode of hepatitis.
A new VA examination was accorded to the veteran in March
1998. The examiner noted that the veteran's C-file had been
received and reviewed. It was also noted that the veteran
reported he had hepatitis B during service, and that he had a
relapse in 1979. Hepatitis C was reportedly diagnosed when
the veteran was in Korea in 1980. Diagnoses from this
examination included history of hepatitis B and history of
hepatitis C. With respect to the hepatitis, the examiner
noted that the veteran recalled having hepatitis B during
service, and the 1996 diagnosis was for hepatitis C. The
examiner stated that these were two separate illnesses, and
were not related, one to the other. However, the examiner
noted that although the records contained several annotations
for hepatitis, the type of hepatitis was not identified. The
finding that the veteran had hepatitis B during service was
based solely upon the veteran's recollection.
The evidence on file shows that the RO attempted to obtain
medical treatment records from the time the veteran was
reportedly treated in Korea in 1980. However, these efforts
were unsuccessful.
In a July 1998 statement, the veteran's representative noted
that in the 1970's, hepatitis C was not yet known as a
separate form of hepatitis. Further, review of the service
medical records showed diagnoses of "hepatitis," and
"viral hepatitis," but did not state which type of
hepatitis it was. The representative contended that the
issue was not specifically addressed by the March 1998 VA
examination, and, therefore, the examination was inadequate.
In a May 1999 statement, the veteran's representative
asserted that the March 1998 VA examiner did not conclusively
state that the veteran had hepatitis B during service, and
pointed out that even the examiner acknowledged that it was
only through the veteran's own recollection that hepatitis B
was the etiological agent. Therefore, the representative
asserted that the veteran could have had hepatitis C in
service, but proper testes were not conducted to provide a
conclusive diagnosis. Consequently, the representative
contended that the veteran was entitled to a grant of service
connection under the benefit of the doubt doctrine.
In a June 1999 statement, the veteran's representative
contended that the March 1998 VA examination did not
adequately respond to the question presented in the June 1997
Board remand. The representative argued that while the
examiner stated that the hepatitis C antibody was present,
the examiner did not test for the hepatitis B antibody, or if
such testing was conducted, that antibody was not shown.
Analysis. The Board notes that the veteran's claim of
entitlement to service connection for hepatitis was
previously denied because the medical evidence did not show
that the veteran had active hepatitis or residuals thereof.
In the instant case, the Board finds that the October 1996
medical finding that the veteran was positive for the
hepatitis C antibody is new and material evidence sufficient
to reopen the veteran's claim. As stated above, no evidence
of active hepatitis or residuals thereof was of record at the
time of the May 1974 denial, and it was the specific reason
for denying the claim. Therefore, the Board finds that this
evidence bears directly and substantially upon the specific
matter under consideration, is not cumulative or redundant,
and by itself or in connection with evidence previously
assembled, is so significant that it must be considered in
order to fairly decide the merits of the claim. See
38 C.F.R. § 3.156(a).
However, the Board's analysis of the veteran's claim does not
end with the finding of new and material evidence. As stated
above, the Court held in Elkins, supra, that if new and
material evidence has been presented, immediately upon
reopening VA must determine whether, based upon all the
evidence and presuming its credibility, the claim is well
grounded pursuant to 38 U.S.C.A. § 5107(a). Finally, if the
claim is well-grounded, VA may evaluate the merits after
ensuring the duty to assist under 38 U.S.C.A. § 5107(b) has
been fulfilled.
In the instant case, the Board finds that the veteran has not
submitted a well-grounded claim of entitlement to service
connection for hepatitis. While the veteran was diagnosed
with viral hepatitis during service, and is currently
positive for the hepatitis C antibody, no competent medical
evidence is on file that relates the hepatitis C to service.
As noted by the March 1996 and March 1998 VA examiners, the
veteran has stated that he had hepatitis B during service.
Both of these examiners apparently found the veteran's
account to be credible. Further, the April 1990 and October
1996 medical tests show that the veteran has had hepatitis B
in the past, not currently active. Finally, the veteran's
own representative has acknowledged that there was no testing
available for hepatitis C during the veteran's period of
active service. In short, the evidence on file indicates
that the veteran had hepatitis B during service.
Regarding the etiological relationship between the veteran's
in-service hepatitis and his current hepatitis C, the March
1998 VA examiner stated that hepatitis B and hepatitis C are
two separate illnesses, and are not related, one to the
other. Granted, the examiner also noted that the finding
that the veteran had hepatitis B during service is based
solely upon the veteran's recollection. Nevertheless, the
fact is that a medical professional has stated that one type
of hepatitis is not related to the other. Accordingly, this
shows that competent medical evidence is necessary to relate
the veteran's current hepatitis to service. This finding is
also supported by the March 1996 VA examiner's request for
additional testing.
No medical evidence is on file which supports the contention
that the veteran's in-service hepatitis is related to his
current hepatitis C. As stated above, the Board has found
that the veteran is not qualified to render a medical
opinion. Without such a medical nexus opinion, a grant of
service connection would be based on nothing more than mere
speculation. An award of service connection may not be based
on resort to speculation or remote possibility. See 38
C.F.R. § 3.102 (1997); see also Stegman v. Derwinski, 3 Vet.
App. 228, 230 (1992); Obert v. Brown, 5 Vet. App. 30, 33
(1993); Bostain v. West, 11 Vet. App. 124, 127 (1998). Since
no such evidence is on file, the Board concludes that the
veteran's claim is not well-grounded and must be denied. See
Caluza at 506.
As mentioned above, VA has no duty to assist the veteran in
the absence of a well-grounded claim. Regarding the duty to
inform, the Board finds that the RO has advised the veteran
of the evidence necessary to well ground a claim for service
connection, and the veteran has not indicated the existence
of any pertinent evidence that has not already been obtained
or requested that would well-ground his claim of service
connection for hepatitis. McKnight, supra; Epps, supra.
Since the veteran has not submitted the evidence necessary
for a well-grounded claim, a weighing of the merits of the
claim is not warranted, and the reasonable doubt doctrine is
not for application. See generally Gilbert, supra.
B. Lumbosacral Strain
Background. The veteran's spine was clinically evaluated as
normal on his July 1970 enlistment examination. At the same
time, the veteran reported that he had never experienced back
trouble of any kind. The service medical records show that
the veteran was diagnosed with chronic lumbosacral strain in
April 1971, etiology undetermined. It was noted that there
was no history of injury. He was prescribed a back brace in
May 1971. Additionally, he was not to do heavy lifting, or
prolonged standing. The veteran was subsequently treated for
back pain of two weeks duration in March 1973. It was noted
that the veteran hurt his back while pushing a car. There
was no radicular pain reported at this time. No discharge
examination is on file. However, it is noted that at the
time of his discharge, the veteran related on a Report of
Medical History that he had experienced back trouble.
No back disorder was diagnosed by the VA general medical
examination accorded to the veteran in April 1974.
The veteran's original claim of entitlement to service
connection for lumbosacral strain was denied by a May 1974
rating decision. This decision noted the veteran's history
of in-service back problems, as well as the fact that no back
disability was shown at the recent VA examination.
The veteran sought to reopen his claim of service connection
for lumbosacral strain in June 1990. Various medical records
were obtained in conjunction with this claim.
The record includes an April 1990 statement from L. M.
Williams, D.C., which reported that the veteran was first
seen in August 1984 for complaints of discomfort in the
cervical spine, mid-thoracic and lumbar spinal areas. Range
of motion at that time was good, and the results of his
treatment were also good. The veteran was subsequently
treated in 1986 and 1988 for cervical thoracic complaint.
Private medical records were obtained from Dr. J. Pierce,
which covers the period from December 1983 to August 1986.
The veteran reported in December 1983 that he experienced
occasional back pain which he attributed to an in-service
injury that occurred when he fell out of a truck. The Board
notes that the veteran's service-connected left shoulder
disorder is based upon his account of an injury that occurred
when he fell out of a truck.
Also on file is a May 1990 statement from A. D. Wild,
Chiropractic Physician. Dr. Wild reported that he first saw
the veteran in August 1989 for complaints of neck pain, low
back pain, and headaches. It was noted that the veteran
attributed these problems to an old injury (fall) while in
service. Dr. Wild reported that the veteran's diagnosis was
chronic cervical-dorsal-lumbar strain.
VA medical records are on file from February 1988 which note
a history of an old back injury. Records from March 1990
show treatment for chronic back pain of several years
duration. Other medical records are on file which also show
treatment for back pain.
At his October 1991 personal hearing, the veteran testified
that he hurt his back approximately three times during
service. He also testified that he has had constant problems
with his back since his discharge from service. The veteran
testified that he has been treated by various chiropractors
over the years in various parts of the country. For example,
he testified that he was hospitalized at the VA Medical
Center (VAMC) in Providence, Rhode Island, some time in 1979
or 1980 for his back problems. He also testified that his
foot problems cause problems with his walking, which in turn
aggravates his back.
A May 1980 report of VA hospitalization was subsequently
obtained which noted that the veteran came to the hospital
after he experienced severe pain in his low back while
playing basketball. The veteran's back was treated with bed
rest, as well as progressive ambulation and exercise. It was
noted that the physicians never felt that the veteran had a
severe injury and that this was borne out by his treatment.
Diagnoses from this hospitalization included acute low back
strain.
The March 1998 VA examination made no pertinent findings
regarding the veteran's back.
In a May 1999 statement, the veteran representative noted the
veteran's in-service back problems, and emphasized the fact
that the veteran was diagnosed with "chronic" lumbosacral
strain in April 1971. The representative also noted the fact
that the veteran had had treatment for back pain on numerous
occasions since his discharge from service.
Analysis. The Board notes that the veteran's claim of
entitlement to service connection for a back disorder was
denied in May 1974 because no back disability was identified
on a recent examination.
In the instant case, the Board finds that the various medical
records on file showing treatment for back problems after May
1974 constitute new and material evidence sufficient to
reopen the veteran's claim. As stated above, no such
evidence was on file at the time of the May 1974 denial, and
it was the specific reason for denying the claim. Therefore,
the Board finds that this evidence bears directly and
substantially upon the specific matter under consideration,
is not cumulative or redundant, and by itself or in
connection with evidence previously assembled, is so
significant that it must be considered in order to fairly
decide the merits of the claim. See 38 C.F.R. § 3.156(a).
Having found that new and material evidence has been
submitted, the Board now turns to the issue of whether the
claim is well-grounded. Here, the Board finds that the
veteran has not submitted a well-grounded claim of
entitlement to service connection for lumbosacral strain.
Granted, the veteran was treated for back problems during
service, there is medical evidence of a current back
disorder, and the veteran has alleged continuity of
symptomatology for his back pain at the October 1991 personal
hearing. However, the Board notes that the Court has
consistently held that determinations of medical causation
must be made by a qualified medical professional in order to
have probative value. Grottveit, 5 Vet. App. at 93; Caluza
at 504; see also Savage v. Gober, 10 Vet. App. 488 (1997)
(where the disability is of the type as to which lay
observation is not competent to identify its existence,
medical evidence, and not simply a showing of continuity of
symptoms, is needed to provide a nexus between the veteran's
in-service symptoms and the currently diagnosed
disabilities). As stated above, nothing in the claims folder
shows that the veteran is qualified to render a medical
opinion. Although the veteran, as a lay person, is competent
to testify to the pain he has experienced since his military
service, he is not competent to testify to the fact that what
he experienced in service and since service is the same
condition he is currently diagnosed with. See Clyburn v.
West, 12 Vet. App. 296, 301 (1999).
The medical evidence on file does note the veteran's
contention that his back pain is the result of an in-service
injury. However no additional comments or opinions were made
regarding the veteran's reported history. Bare transcription
of history does not transform the information into competent
medical evidence merely because the transcriber happens to be
a medical professional. LeShore v. Brown, 8 Vet. App. 406,
409 (1995). Thus, these statements do not provide the
requisite medical nexus for a well-grounded claim.
For the reasons stated above, the Board finds that the claim
of entitlement to service connection for lumbosacral strain
is not well-grounded and must be denied. VA has no duty to
assist the veteran in the absence of a well-grounded claim.
Regarding the duty to inform, the Board finds that the RO has
advised the veteran of the evidence necessary to well ground
a claim for service connection, and the veteran has not
indicated the existence of any pertinent evidence that has
not already been obtained or requested that would well-ground
his claim of service connection for lumbosacral strain.
McKnight, supra; Epps, supra. Since the veteran has not
submitted the evidence necessary for a well-grounded claim, a
weighing of the merits of the claim is not warranted, and the
reasonable doubt doctrine is not for application. See
generally Gilbert, supra.
III. Increased Ratings
In general, a veteran's claim of increasing severity of a
service-connected disability establishes a well-grounded
claim for an increased evaluation. Proscelle v. Derwinski, 2
Vet. App. 629 (1992). The veteran has asserted that both his
left shoulder disability and his plantar wart of the left
foot are more disabling than contemplated by the current
evaluation. Therefore, his claims for increased evaluations
are well-grounded. Consequently, VA has a statutory duty to
assist the veteran in the development of these claims.
38 U.S.C.A. § 5107(a).
Legal Criteria: Increased Ratings. Disabilities must be
reviewed in relation to their history. 38 C.F.R. § 4.1.
Other applicable, general policy considerations are:
interpreting reports of examination in light of the whole
recorded history, reconciling the various reports into a
consistent picture so that the current rating may accurately
reflect the elements of disability, 38 C.F.R. § 4.2;
resolving any reasonable doubt regarding the degree of
disability in favor of the claimant, 38 C.F.R. § 4.3; where
there is a question as to which of two evaluations apply,
assigning a higher of the two where the disability picture
more nearly approximates the criteria for the next higher
rating, 38 C.F.R. § 4.7; and, evaluating functional
impairment on the basis of lack of usefulness, and the
effects of the disabilities upon the person's ordinary
activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski,
1 Vet. App. 589 (1991).
The degree of impairment resulting from a disability is a
factual determination and generally the Board's primary focus
in such cases is upon the current severity of the disability.
Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v.
Brown, 6 Vet. App. 396, 402 (1994).
With regard to the veteran's request for an increased
schedular evaluation, the Board will only consider the
factors as enumerated in the applicable rating criteria. See
Massey v. Brown, 7 Vet. App. 204, 208 (1994); Pernorio v.
Derwinski, 2 Vet. App. 625, 628 (1992).
Background. Service connection was granted for plantar wart
of the left foot by a May 1974 rating decision. At that
time, it was noted that the veteran's service medical records
showed plantar wart of the left great toe in March 1973.
Also, the March 1974 VA examination showed excision of
plantar wart of the left great toe. Since the condition was
considered resolved, a noncompensable disability rating was
assigned, effective July 27, 1973. This rating was increased
to 10 percent, effective August 8, 1979, by an October 1979
rating decision.
VA medical records are on file from March 1990 which show
treatment for chronic right foot pain with a history of
spurs. X-rays of both feet from April 1990 found that on the
medial aspect of the left first interphalangeal joint, a
small, well defined, bony space was seen, and it was opined
that it may represent an old fracture. Otherwise, the bony
outlines and architecture looked normal. Overall impression
was that clinical correlation was indicated for present or
past injury to the left first interphalangeal joint.
Subsequent records from July 1990 show treatment for plantar
wart of the left heel, but no plantar warts were noted on the
right foot.
As mentioned above, a small callous over the metatarsal
phalangeal joint of the left great toe was found at the June
1991 VA examination.
At his October 1991 personal hearing, the veteran testified
that he had to get the callus of his left foot scraped off
every two months. He also testified that the callus was
painful. The veteran stated that if he did not get the
callus scraped he would be in a lot of pain, and would not be
able to walk. He also testified that he continued to use a
foot insert for his left heel.
At the March 1998 VA examination, the veteran reported, with
regard to his plantar warts, that he was currently wart free.
However, he had callus formation from numerous procedures to
remove the warts. He showed the examiner an area the size of
a quarter on his left foot plantar surface. The veteran also
reported that his feet were operated on twice by the
military, once on the left great toe and once on the right
foot, plantar surface. He reported that he had been operated
on four times since his discharge from service. Further, he
reported that he currently had bony spurs and calluses. He
stated that these calluses went to the bone, and that he had
to have them scraped.
On examination of the extremities, the examiner found that
the veteran had no distal edema, hemosiderin deposits,
varicose veins, pallor, cyanosis, or clubbing. Radial and
posterior tibial pulses were 2+ and equal, bilaterally.
Range of motion testing revealed that all joints were within
normal ranges of motion and without complaints of pain. The
examiner found that the veteran had no pes planus deformity.
Additionally, the examiner noted that attached pictures of
the veteran illustrated callus formation to the plantar
surface, fifth toe, bilateral. Based on the foregoing, the
examiner diagnosed, among other things, plantar wart/removal
and callus formation of both feet.
In a January 1999 Supplemental Statement of the Case, the RO
confirmed and continued the assigned 10 percent rating for
the veteran's plantar wart of the left foot. The RO found
that the veteran was not entitled to the next higher rating
of 30 percent in the absence of evidence showing exudation
or constant itching, extensive lesions or marked
disfigurement.
Legal Criteria: Plantar Wart. The Board notes that the VA
schedule for rating disabilities does not provide specific
criteria for evaluating plantar warts. When a disability not
specifically provided for in the rating schedule is
encountered, it will be rated under a closely related disease
or injury in which not only the functions affected, but the
anatomical localization and symptomatology are closely
analogous. 38 C.F.R. § 4.20. Accordingly, the veteran's
plantar wart of the left foot has been evaluated pursuant to
38 C.F.R. § 4.118, Diagnostic Code 7819. This Diagnostic
Code provides that new, benign skins growths are to be rated
as analogous to scars, disfigurement, etc.
A 10 percent evaluation is warranted for superficial, poorly
nourished scars with repeated ulceration under Diagnostic
Code 7803. 38 C.F.R. § 4.118.
Under Diagnostic Code 7804, superficial scars which are
tender and painful on objective demonstration warrant a 10
percent evaluation. 38 C.F.R. § 4.118.
The veteran's scars may also be rated on limitation of the
part affected under Diagnostic Code 7805. 38 C.F.R. § 4.118.
As shown by the January 1999 Supplemental Statement of the
Case, the RO has also considered the criteria found at
Diagnostic Code 7806 which evaluates eczema. Under this
Code, a condition manifest by exfoliation, exudation or
itching, if involving an exposed surface or extensive area is
rated as 10 percent disabling. A 30 percent rating is
assigned with exudation or constant itching, extensive
lesions or marked disfigurement. With ulceration or
extensive exfoliation or crusting, and systemic nervous
manifestations or exceptional repugnance a 50 percent rating
is assigned. 38 C.F.R. § 4.118.
Analysis. In the instant case, the Board notes that VA has
obtained records from health care providers who have treated
the veteran for his plantar wart of the left foot, has
provided him with the opportunity to present testimony at a
personal hearing with respect to his claim, and has had him
examined. No further assistance to the veteran is required
to comply with the duty to assist mandated by 38 U.S.C.A.
§ 5107(a).
In the instant case, the Board finds that the evidence on
file, including the medical records and the veteran's own
statements, show that his plantar wart of the left foot is
currently manifest by a residual callus that is painful and
tender. This corresponds to the criteria under Diagnostic
Code 7804. However, neither this Code or Diagnostic Code
7803 provides for a disability rating in excess of 10
percent. In short, these Codes do not support the veteran's
claim for an increased disability evaluation.
The veteran has testified that if he did not get the callus
of his left foot scraped every two months he would be in a
lot of pain, and he would be unable to walk. However, since
the veteran does get them scraped there is nothing in the
evidence on file to show that the plantar wart has resulted
in limitation of motion of the left foot. Accordingly, the
evidence does not support a disability rating in excess of 10
percent pursuant to Diagnostic Code 7805.
Regarding Diagnostic Code 7806, the Board finds that neither
the medical evidence, the veteran's statements, or the
pictures of the left foot callus indicates that the plantar
wart of the left foot is manifest by exudation or constant
itching, extensive lesions or marked disfigurement.
Therefore, the veteran does not meet or nearly approximate
the criteria necessary for the next higher rating of 30
percent under Diagnostic Code 7806. Since the veteran is not
entitled to the next higher rating of 30 percent under this
Code, then it is axiomatic that he is not entitled to the 50
percent rating either.
The Board finds that there are no other potentially
applicable Diagnostic Codes by which to evaluate the
veteran's plantar wart of the left foot. Plantar warts are a
skin disability, and none of the other Codes for evaluating
skin disabilities apply in the instant case; these include
burn scars, and scars of the head, face, and neck.
For the reasons stated above, the Board finds that the
veteran does not meet or nearly approximate the criteria
necessary for a disability rating in excess of 10 percent for
his plantar wart of the left foot. Accordingly, his claim
for an increased evaluation must be denied.
ORDER
The claim of service connection for a plantar wart of the
right foot is well-grounded.
Entitlement to service connection for residuals of pneumonia
is denied.
New and material evidence having been submitted to reopen the
claim of entitlement to service connection for hepatitis, the
claim is reopened.
Entitlement to service connection for hepatitis is denied.
New and material evidence having been submitted to reopen the
claim of entitlement to service connection for lumbosacral
strain, the claim is reopened.
Entitlement to service connection for lumbosacral strain is
denied.
Entitlement to a disability rating in excess of 10 percent
for plantar wart of the left foot is denied.
REMAND
In the June 1997 remand, the Board directed the RO to
schedule the veteran for an examination to determine the
severity of the left shoulder disorder. As indicated above,
a VA examination was subsequently accorded to the veteran in
March 1998. Range of motion testing revealed normal ranges
of motion and without complaints of pain. There was no gross
asymmetry to the upper extremities. Additionally, under
"Objective Data," the examiner noted that the left shoulder
showed old fracture of the distal end of the left clavicle
with acromioclavicular separation and small osseous fragments
in the acromioclavicular ligament.
The veteran's representative has contended in statements
dated in May and June 1999 that the March 1998 VA examination
was inadequate for evaluation of the veteran's left shoulder
disability. In DeLuca v. Brown, 8 Vet. App. 202 (1997), the
Court pointed out that when evaluating disabilities of the
musculoskeletal system the examinations must include
consideration of all factors identified in 38 C.F.R. §§ 4.40
and 4.45. Those regulations, in part, require consideration
of limitation of movement, weakened movement, excess
fatigability, and incoordination, and pain, due exclusively
to the service-connected disability. A VA examination report
must provide detailed information -- not only with regard to
any functional loss, but any limitation of function due to
pain, weakness, fatigability, and incoordination, pain on use
and movement of the joint affected during flare-ups -- in
order to permit an equitable evaluation of the veteran's
claim. See DeLuca at 206.
Upon review of the March 1998 VA examination, the Board
concurs with the assertions of the veteran's representative
that the examination was inadequate for disability evaluation
purposes pursuant to the Court's guidelines in DeLuca.
Therefore, the Board is of the opinion that a new examination
is necessary for a full and fair adjudication of this appeal.
For the reasons stated above, the Board has determined that
additional development is also required for the veteran's
claim of entitlement to service connection for a plantar wart
of the right foot.
The Board is cognizant of the fact that the veteran's claims
have been active for nine years, and that this matter has
been remanded twice in the past. Hence, the Board wishes to
assure the veteran that this additional development is
necessary for a full and fair adjudication of his claim.
Accordingly, this case is REMANDED for the following:
1. The claims folder should be returned
to the physician who conducted the March
1998 VA examination for clarification as
to the date of onset and etiology of the
veteran's plantar wart of the right foot.
The examiner should express an opinion as
to whether the veteran's plantar wart of
the right foot was manifest during his
military service and if not, whether
there is an etiological relationship
between the left foot plantar wart and
the right foot plantar wart. If the
physician who conducted the March 1998 VA
examination is unavailable, the RO should
obtain the requested information from
another appropriately qualified
physician. If any additional testing is
required to comply with this remand, it
should be so conducted.
2. The RO should obtain the names and
addresses of all medical care providers
who treated the veteran for his left
shoulder disability. After securing the
necessary release, the RO should obtain
those records not already on file.
3. The veteran should be afforded a VA
examination to determine the current
nature and severity of his left shoulder
disability. The claims folder should be
made available to the examiner for review
before the examination. It is imperative
that the examiner comment on the
functional limitations caused by left
shoulder pain and any other associated
symptoms, to include the frequency and
severity of flare-ups of symptoms, and
the effect of pain on the range of motion
of the left shoulder and the veteran's
ability to use the left shoulder.
4. Thereafter, the RO should review the
claims file to ensure that all of the
foregoing requested development has been
completed. In particular, the RO should
review the examination report to ensure
that it is responsive to and in
compliance with the directives of this
remand and if it is not, the RO should
implement corrective procedures. See
Stegall v. West, 11 Vet. App. 268 (1998).
5. After undertaking any development
deemed essential in addition to that
requested above, the RO should then
readjudicate the issues on appeal in
light of any additional evidence added to
the records assembled for appellate
review.
If the benefits requested on appeal are not granted to the
veteran's satisfaction, the veteran and his representative
should be furnished a Supplemental Statement of the Case and
an opportunity to respond. The case should then be returned
to the Board for further appellate consideration, if in
order. By this remand, the Board intimates no opinion as to
any final outcome warranted.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.
Gary L. Gick
Member, Board of Veterans' Appeals